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Dangers in Using Email to Communicate with Clients

Lawyers should be wary of using email to communicate confidential, sensitive, and privileged information pertinent to their client’s case. Although it is a fast and convenient way of communication, email can be easily accessed by a third-party.  For example, an employer has a right to search the email boxes of an employee because the work computer is the property of the employer and emails in a work-place are inherently related to work. This effectively erodes the employee’s privacy and can be especially problematic if the employee is corresponding with the lawyer about a case related to work (http://consumer.findlaw.com/online-scams/email-privacy-concerns.html).


Even at home, email users may not have much privacy either. Divorce lawyers should be careful about using email to communicate with a client, such as in discussing the divorce provisions. The client’s spouse may be able to access this confidential information if the client has saved any of the emails to a home computer or server (http://consumer.findlaw.com/ online-scams/email-privacy-concerns.html).


Emails can also be sent inadvertently to an unintended recipient. To mitigate this situation, many law firms include disclaimers at the bottom of emails to remind the recipient that there may be privileged and confidential information in the email. However, as the American Bar Association asserts, these disclaimers may not be effective. Since they are often written in legalese, many clients may not understand everything that is stated in the disclaimer. Furthermore, because these disclaimers are lengthy and long, clients have a tendency to glance over them without paying much attention. Most importantly, it is difficult to enforce such disclaimers. Although some disclaimers instruct the recipient who has received the email in error to notify the sender and delete the email, it is practically impossible for the sender to ascertain that the email has been deleted. Besides, in the event that the unintended recipient does not follow the instruction, how can the sender make the recipient liable for the action? (http://apps.americanbar.org/litigation/ committees/technology/articles/ winter2013-0213-do-email-disclaimers-really-work.html). Moreover, there is a possibility that emails can be hacked, revealing confidential information (http://consumer.findlaw.com/online-scams/email-privacy-concerns.html).


Because of these reasons, lawyers have to be cautious when they convey sensitive information to clients. In addition to being vigilant about privacy and confidentiality when using email to communicate with clients, lawyers should take measures to safeguard their clients’ sensitive information. In some cases, it may be better for lawyers to meet their clients in person or talk on the phone when they want to discuss substantive matters regarding the case. Alternatively, lawyers can encrypt emails so that other people cannot read the confidential information. Another option is for lawyers to communicate with clients by using a secure portal. Lawyers can also urge their clients to use password-protected computers and remember to log out after working on their email. It will be useful to remind the clients that deleting emails do not mean that the emails are lost, as emails can sometimes be retrieved from other locations, such as the server or the recipients’ computers. Lawyers should also take measures on their end to ensure that the email messages are sent to the correct recipient. By abolishing the use of the “reply all” function and email addresses stored in the program, it may help to reduce such instances. Lastly, lawyers can include a statement about email privacy in their engagement or retention letters so that their clients are constantly reminded of the dangers of using email to send confidential and sensitive information (http://consumer.findlaw.com/online-scams/email-privacy-concerns.html).

-Clarence Ling